High Court: Suspension was a breach of contract

Peninsula Team

September 11 2017

The High Court has concluded suspending an employee as part of a disciplinary procedure is not a neutral act and can breach the contract of employment. Employers need to carefully consider whether suspension is necessary and reasonable before taking this step.

In Agoreyo v London Borough of Lambeth, the claimant was an experienced teacher who had taught for 15 years. She successfully applied for a new teaching position and was put in charge of a class that contained two pupils with severe behavioural difficulties. Agoreyo made a number of requests for additional support and the school agreed to take steps to secure teaching support for her class.

Teachers are legally permitted to use reasonable force against pupils under the Education and Inspections Act 2006. Three allegations were made against the claimant concerning the use of unreasonable force against these pupils (no criminal proceedings have followed and the claimant has not been barred from teaching) and the school decided to suspend the claimant. The letter of suspension confirmed this was a “neutral act and not a disciplinary action” and stated suspension was required to allow a full investigation in to these incidents. The claimant resigned on the same day and claimed constructive dismissal.

The High Court confirmed that suspension is not considered a neutral act by courts. In most cases, and particularly where qualified professionals are involved, suspension is likely to have a negative impact on the individual’s reputation and their future career, even if allegations are not substantiated.

The Court judged that the act of suspension was sufficient to breach the implied duty of mutual trust and confidence and the claimant was constructively dismissed. Before taking the decision to suspend, they found that the employer should have:

  • Spoken to the individual about the allegations and asked for her response
  • Allowed sufficient time for teaching support to be put in place
  • Considered whether any appropriate alternatives to suspension were available

What this means for employers:

  • This case highlights the importance for employers to carefully consider suspension; suspension should not be a “knee-jerk” reaction to an allegation
  • Employers should ensure suspension is used appropriately. The circumstances where suspension can be used will normally be outlined in the employee handbook or individual company policies. In this case, the employee was told suspension was used to carry out an investigation in to the three allegations, however, the employer had previously investigated two; showing suspension was not truly necessary
  • Employers must carefully consider whether alternatives to suspension are available. For example, if the allegations concern a particular area of the business, the employer should assess whether the employee can be moved to a separate area or be allocated a task which takes them away from service delivery for a specific time period
  • Where possible, the employee should be spoken to as part of the decision-making process for suspension. At this early stage, they may be able to provide some extra information about the allegations which could lead to a decision that suspension is unnecessary
  • If any plans are being put in place which have the potential to alleviate the situation, ensure reasonable time is given to allow these measures to take effect
  • Where suspension is reasonable, employers should continually review the appropriateness of suspension on an ongoing basis. A lengthy period of suspension, where unnecessary, can lead to a claim of constructive dismissal

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